Enterprise Act 2002

Powers exercisable before references under [F1section 22, 33, 68B or 68C] U.K.

F271 Initial undertakings: completed mergersU.K.

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72Initial enforcement orders: [F3completed or anticipated mergers] U.K.

[F4(1)Subsection (2) applies where—

(a)the CMA is considering whether to make a reference under [F5section 22, 33, 68B or 68C]; and

(b)the CMA has reasonable grounds for suspecting that it is or may be the case that two or more enterprises have ceased to be distinct or that arrangements are in progress or in contemplation which, if carried into effect, will result in two or more enterprises ceasing to be distinct.]

(2)The [F6CMA] may by order, for the purpose of preventing pre-emptive action—

(a)prohibit or restrict the doing of things which the [F6CMA] considers would constitute pre-emptive action;

(b)impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c)provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d)do anything which may be done by virtue of paragraph 19 of Schedule 8.

F7(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8(3A)Subsection (3B) applies where—

(a)subsection (1)(a) and (b) applies; and

(b)the CMA also has reasonable grounds for suspecting that pre-emptive action has or may have been taken.

(3B)The CMA may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects—

(a)do anything mentioned in subsection (2)(b) to (d);

(b)impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.]

[F9(3C)A person may, with the consent of the CMA, take action or action of a particular description where the action would otherwise constitute a contravention of an order under this section.]

(4)An order under this section—

(a)shall come into force at such time as is determined by or under the order; and

(b)may be varied or revoked by another order.

F10(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)An order under this section shall, if it has not previously ceased to be in force and if it is not adopted under F11... paragraph 2 of Schedule 7, cease to be in force—

(a)where the [F6CMA] has decided to make the reference concerned under [F12section 22, 33, 68B or 68C] [F13—

(i)if the CMA accepts an undertaking under section 80 or makes an order under section 81, on the acceptance of the undertaking or the making of the order, and

(ii)otherwise on the final determination of the reference concerned;]

(b)where the [F6CMA] has decided to accept an undertaking under section 73 instead of making that reference, on the acceptance of that undertaking;

(c)where an intervention notice is in force, at the end of the period of 7 days beginning with the giving of that notice; and

(d)where the [F6CMA] has otherwise decided not to make the reference concerned under [F14section 22, 33, 68B or 68C], on the making of that decision.

(7)The [F15CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

[F16(8)In this section “pre-emptive action” means action which might prejudice the reference concerned or impede the taking of any action under this Part which may be justified by the CMA's decisions on the reference.]

73 Undertakings in lieu of references under section [F1722, 33, 68B or 68C] U.K.

(1)Subsection (2) applies if the [F18CMA] considers that it is under a duty to make a reference under section 22 or 33 (disregarding the operation of section 22(3)(b) or (as the case may be) 33(3)(b) but taking account of the power of the [F18CMA] under section 22(2) or (as the case may be) 33(2) to decide not to make such a reference).

(2)The [F18CMA] may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has or may have resulted from it or may be expected to result from it, accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

(3)In proceeding under subsection (2), the [F18CMA] shall, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it.

[F19(3A)Subsection (3B) applies if the CMA considers that it is under a duty to make a reference under section 68B or 68C; and for the purposes of this subsection it must—

(a)disregard the operation of section 22(3)(b) or 33(3)(b) (as applied by section 68B or 68C), but

(b)take account of its power under section 68B(2) or 68C(2) to decide not to make such a reference.

(3B)The CMA may, instead of making such a reference and for the purpose of remedying, mitigating or preventing the prejudice to the ability of the Gas and Electricity Markets Authority described in section 68B(1) or 68C(1), accept from such of the parties concerned as it considers appropriate undertakings to take such action as it considers appropriate.

(3C)In proceeding under subsection (3B), the CMA must, in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the prejudice.

(3D)Before proceeding under subsection (3B), the CMA must—

(a)ask the Gas and Electricity Markets Authority to give its opinion on the effect of the undertakings offered, and

(b)consider the Authority’s opinion.]

(4)In proceeding under subsection (2) [F20or (3B)], the [F18CMA] may, in particular, have regard to the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned.

(5)An undertaking under this section—

(a)shall come into force when accepted;

(b)may be varied or superseded by another undertaking; and

(c)may be released by the [F21CMA].

(6)An undertaking under this section which is in force in relation to a relevant merger situation shall cease to be in force if an order comes into force under section 75 or 76 in relation to that undertaking.

(7)The [F22CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or releasing an undertaking under this section.

[F2373ATime-limits for consideration of undertakingsU.K.

(1)A party concerned who wishes to offer an undertaking to the CMA for the purposes of section 73(2) [F24or (3B)] must do so before the end of the period of 5 working days beginning with—

(a)the day after the CMA gives the person the notice required by section 34ZA(1)(b); F25...

F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)If an undertaking is offered for [F26the purposes of section 73(2) or (3B)], the CMA shall, before the end of the period of 10 working days beginning with the day mentioned in subsection (1)—

(a)decide whether there are reasonable grounds for believing that the undertaking or a modified version of it might be accepted by the CMA under section 73(2), and

(b)if it considers that it might be, give notice to the person who offered the undertaking that it is considering it.

(3)If such a notice is given, the CMA shall decide whether to accept the undertaking before the end of the period of 50 working days beginning with the day mentioned in subsection (1).

(4)The CMA may extend the period mentioned in subsection (3), by no more than 40 working days, if it considers that there are special reasons for doing so.

(5)The CMA shall prepare and publish guidance in relation to the exercise of its power under subsection (4).

(6)The CMA may revise any such guidance and, where it does so, shall publish the revised statement.

(7)The CMA may extend the period mentioned in subsection (3) if it considers that a relevant person has failed (with or without reasonable excuse) to comply with any requirement of a notice given under section 109 in relation to the case in question.

(8)In subsection (7), “relevant person” means—

(a)any person carrying on any of the enterprises concerned;

(b)any person who (whether alone or as a member of a group) owns or has control of any such person; or

(c)any officer, employee or agent of any person mentioned in paragraph (a) or (b).

(9)For the purposes of subsection (8), a person or group of persons able, directly or indirectly, to control or materially influence the policy of a body of persons corporate or unincorporate, but without having a controlling interest in that body of persons, may be treated as having control of it.

(10)An extension under subsection (4) or (7) comes into force when published under section 107.

(11)An extension under subsection (7) continues in force until—

(a)the person concerned provides the information or documents to the satisfaction of the CMA or (as the case may be) appears as a witness in accordance with the requirements of the CMA; or

(b)the CMA publishes its decision to cancel the extension.

(12)In this section and section 73B, “working day” means any day which is not—

(a)a Saturday, a Sunday, Good Friday or Christmas Day, or

(b)a day which is a bank holiday in England and Wales.

73BSection 73A: supplementaryU.K.

(1)A period extended under section 73A(4) may also be extended under section 73A(7), and a period extended under section 73A(7) may also be extended under section 73A(4).

(2)No more than one extension is possible under section 73A(4).

(3)Where a period is extended or further extended under section 73A(4) or (7), the period as extended or (as the case may be) further extended is, subject to subsections (4) and (5), to be calculated by taking the period being extended and adding to it the period of the extension (whether or not those periods overlap in time).

(4)Subsection (5) applies where—

(a)the period within which the CMA must discharge its duty under section 73A(3) is further extended,

(b)the further extension and at least one previous extension is made under section 73A(7), and

(c)the same days or fractions of days are included in or comprise the further extension and are included in or comprise at least one such previous extension.

(5)In calculating the period of the further extension, any days or fractions of days of the kind mentioned in subsection (4)(c) are to be disregarded.

(6)The Secretary of State may by order amend section 73A so as to alter one or more of the periods for the time being mentioned in the section.

(7)But no alteration may be made by virtue of subsection (6) which results in—

(a)the period mentioned in section 73A(1) exceeding 5 working days;

(b)the period mentioned in section 73A(2) exceeding 10 working days;

(c)the period mentioned in section 73A(3) exceeding 50 working days;

(d)the period mentioned in section 73A(4) exceeding 40 working days.

(8)Before making an order under subsection (6) the Secretary of State shall consult the CMA and such other persons as the Secretary of State considers appropriate.]

74 Effect of undertakings under section 73U.K.

(1)The relevant authority shall not make a reference under section 22, 33 [F27, 45, 68B or 68C] in relation to the creation of a relevant merger situation if—

(a)the [F28CMA] has accepted an undertaking or group of undertakings under section 73; and

(b)the relevant merger situation is the situation by reference to which the undertaking or group of undertakings was accepted.

(2)Subsection (1) does not prevent the making of a reference if material facts about relevant arrangements or transactions, or relevant proposed arrangements or transactions, were not notified (whether in writing or otherwise) to the [F28CMA] or made public before any undertaking concerned was accepted.

(3)For the purposes of subsection (2) arrangements or transactions, or proposed arrangements or transactions, are relevant if they are the ones in consequence of which the enterprises concerned ceased or may have ceased, or may cease, to be distinct enterprises.

(4)In subsection (2) “made public” means so publicised as to be generally known or readily ascertainable.

(5)In this section “relevant authority” means—

(a)in relation to a possible reference under section 22 [F29, 33, 68B or 68C], the [F30CMA]; and

(b)in relation to a possible reference under section 45, the Secretary of State.

75 Order-making power where undertakings under section 73 not fulfilled etc.U.K.

(1)Subsection (2) applies where the [F31CMA] considers that—

(a)an undertaking accepted by it under section 73 has not been, is not being or will not be fulfilled; or

(b)in relation to an undertaking accepted by it under that section, information which was false or misleading in a material respect was given to the [F31CMA] by the person giving the undertaking before the [F31CMA] decided to accept the undertaking.

(2)The [F31CMA] may, for any of the purposes mentioned in section 73(2), make an order under this section.

(3)Subsections (3) and (4) of section 73 shall apply for the purposes of subsection (2) above as they apply for the purposes of subsection (2) of that section.

(4)An order under this section may contain—

(a)anything permitted by Schedule 8; and

(b)such supplementary, consequential or incidental provision as the [F32CMA] considers appropriate.

(5)An order under this section—

(a)shall come into force at such time as is determined by or under the order;

(b)may contain provision which is different from the provision contained in the undertaking concerned; and

(c)may be varied or revoked by another order.

(6)The [F32CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.

76 Supplementary interim order-making powerU.K.

(1)Subsection (2) applies where—

(a)the [F33CMA] has the power to make an order under section 75 in relation to a particular undertaking and intends to make such an order; or

(b)the [F34CMA] has the power to make an order under section 83 in relation to a particular undertaking and intends to make such an order.

(2)The [F35CMA] may, for the purpose of preventing any action which might prejudice the making of that order, make an order under this section.

(3)No order shall be made under subsection (2) unless the [F35CMA] has reasonable grounds for suspecting that it is or may be the case that action which might prejudice the making of the order under section 75 or (as the case may be) 83 is in progress or in contemplation.

(4)An order under subsection (2) may—

(a)prohibit or restrict the doing of things which the [F36CMA] considers would prejudice the making of the order under section 75 or (as the case may be) 83;

(b)impose on any person concerned obligations as to the carrying on of any activities or the safeguarding of any assets;

(c)provide for the carrying on of any activities or the safeguarding of any assets either by the appointment of a person to conduct or supervise the conduct of any activities (on such terms and with such powers as may be specified or described in the order) or in any other manner;

(d)do anything which may be done by virtue of paragraph 19 of Schedule 8.

(5)An order under this section—

(a)shall come into force at such time as is determined by or under the order; and

(b)may be varied or revoked by another order.

(6)An order under this section shall, if it has not previously ceased to be in force, cease to be in force on—

(a)the coming into force of an order under section 75 or (as the case may be) 83 in relation to the undertaking concerned; or

(b)the making of the decision not to proceed with such an order.

(7)The [F37CMA] shall, as soon as reasonably practicable, consider any representations received by it in relation to varying or revoking an order under this section.